San Diego court case tests legality of NFL's fan conduct code

SAN DIEGO -- City Attorney Jan Goldsmith believes the NFL has a right to enforce its code of conduct, including ejecting fans for making obscene gestures and using foul language.

A criminal defense attorney disagrees, saying the code of conduct is unenforceable.

At a hearing set for Friday, attorney Mary Frances Prevost will ask San Diego Superior Court Judge Gale Kaneshiro to clear the arrest record of Jason Ensign. Last month, Kaneshiro threw out battery charges against Ensign, a Kansas City fan who was detained by private security guards during a 2009 Chiefs-Chargers game at Qualcomm Stadium.

Although Goldsmith can't appeal Kaneshiro's earlier decision, he can appeal if the judge grants Ensign's motion. Goldsmith said he is asking the judge to deny the motion to "send a message" about fan behavior.

The NFL has filed an affidavit supporting Goldsmith's view.

Security guards tried to remove Ensign because they said he was yelling obscenities and flipping his middle finger at other fans. Goldsmith charged Ensign with misdemeanor battery for punching and biting a security guard. Kaneshiro ruled there was no justification for removing the fan because he had a First Amendment right to engage in obscenities and a right to defend himself.

"The court's decision was wrong," Goldsmith said Wednesday. "It applied the First Amendment in a way it hasn't been applied before. The code of conduct has been in place three years. It applies in all 32 stadiums. If a fan uses obscene gestures or words, he may be removed from the stadium. This isn't about whether one guy gets charged and convicted of battery. This is about whether we're going to set some kind of precedent."

Goldsmith said he was given an opening when Prevost filed a motion asking the judge for a "finding of factual innocence" to have Ensign's arrest record cleared. Prevost said Ensign, a nurse, has been harmed by the allegations.

Goldsmith said the judge's ruling hasn't set a precedent.

"It just creates a chilling effect. If she grants the motion, we will appeal. Then it will be precedential ...," Goldsmith said. "What this is about is does the NFL have the right to evict fans who violate the code of conduct? If the answer is no, then this fellow and other fans can simply say, 'No, I'm not leaving,' and they can use violence to avoid eviction."

Prevost said Ensign "defended himself after he was attacked."

She also said Goldsmith is "desperate."

"We've already litigated every piece of it," Prevost said. "They lost, and now they're trying to re-litigate it. You can't print something on a ticket and call it a contract. It's not enforceable. To have a contract, you have to have an offer and acceptance. What if they said, 'We want you to dance and do three cartwheels when you walk through the door?' You wouldn't have to if you didn't want to."

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Prevost said the code of conduct "is a suggestion. It's not an order. The prosecution at trial tried to say the fan code of conduct is enforceable because it was hung over urinals. Could you imagine a man standing over a urinal and we now form a contract because we say don't do anything obscene? They're everywhere. We have to follow the posters, your honor.

"It's the dumbest thing I've ever heard. Whatever the code of conduct is, it's between the Chargers and the NFL. It has nothing to do with Qualcomm Stadium. It's city property."

Goldsmith disagrees, saying private entities have the right to remove unruly customers.

"If somebody stood up at an opera and gave everybody the finger or started saying obscenities, they would be ushered out," Goldsmith said. "They don't have the right to beat up the fellow who ushers them out."

Prevost has sued the city and the security guards involved. She said the suit will continue even if her motion is denied Friday.

Jeffrey Miller, the NFL's chief security officer, filed an affidavit saying the code of conduct has reduced fan incidents at stadiums and that he's not aware of other legal challenges to it.

"I'm concerned about the deterrence of crime at these sporting events," Goldsmith said. "The code of conduct is designed to be a deterrent and stop that. The idea of families going to a ballgame, they should not be in fear of there being brawls and all this. People say, 'We should be able to do what we want and say what we want.' I buy tickets, too, and if I'm sitting there with my kids, I don't want someone in front of me provoking a brawl behind me."